Collin Corporation (Pte) Ltd v Chong Gay Theatres Ltd and other actions
| Jurisdiction | Singapore |
| Judgment Date | 30 May 1991 |
| Date | 30 May 1991 |
| Docket Number | Suits Nos 1304 of 1979; 3678 of 1980 and 2966 of 1982 |
| Court | High Court (Singapore) |
[1991] SGHC 72
T S Sinnathuray J
Suits Nos 1304 of 1979; 3678 of 1980 and 2966 of 1982
High Court
Land–Conveyance–Construction of sale and purchase agreements–Claim for specific performance–Whether date of completion stipulated–Whether purchaser suffered loss or damage–Land–Conveyance–Construction of sale and supplemental agreements–Meaning of “certificate of fitness for occupation, whether temporary or permanent”–Claim for liquidated damages–Whether there was unreasonable delay on vendor's part in transferring subsidiary strata certificates of title and in completing sale–Land–Strata titles–Maintenance fees and service charges–Date of commencement of payment of such fees and charges–Whether failure on vendor's part to provide reasonable standard of maintenance and services
This action arose out of three suits. On 5 December 1973, Chong Gay Theatres Ltd (“Chong Gay”) entered into five sale and purchase agreements (“the sale agreements”) with Collin Corporation Pte Ltd, which subsequently changed its name to Lee Kai Corporation Pte Ltd (“Lee Kai”), for the sale of five floors of office space in the Golden Mile Tower. On 6 December 1973, the parties made five supplemental agreements (“the supplemental agreements”) varying certain terms of the sale agreements. Essentially, the supplemental agreements provided for the immediate payment of 75% of the purchase price of the properties, notwithstanding that under cl 4 (b) of the sale agreements, this payment was not due until after the issue of “the certificate of fitness for occupation, whether temporary or permanent” for the properties. 75% of the purchase price was in fact paid.
Suit No 1304 of 1979 was an action by Lee Kai for liquidated damages for breach of contract in respect of the sale agreements and the supplemental agreements. Lee Kai alleged that Chong Gay had failed to obtain the relevant certificates of fitness (“COFs”) within the time stipulated in the sale agreements and the supplemental agreements.
Suit No 3678 of 1980 was an action by Lee Kai for specific performance of the sale agreements on the grounds that: (a) Chong Gay had failed and/or refused to obtain the subsidiary certificates of title (“SSCTs”) within a reasonable time; and (b) Chong Gay had failed and/or refused to complete the sale and purchase of the properties within a reasonable time.
In Suit No 2966 of 1982, Chong Gay claimed for the payment of outstanding maintenance fees and service charges in respect of the properties that Lee Kai had taken possession of after the issue of the relevant temporary occupation licences (“TOLs”). Lee Kai counterclaimed for an alleged overpayment of maintenance fees and services charges.
The first TOL was issued on 12 August 1975 and the COF for the building was issued on 14 June 1978.
Held, dismissing the claims of Lee Kai in Suit 1304/1979 and Suit 3678/1980 and the counterclaim in Suit 2966/1982, and granting judgment to Chong Gay in Suit 2966/1982:
(1) The sole issue in Suit 1304/1979 was one of construction of the said agreements. Lee Kai's claim for liquidated damages in Suit 1304/1979 was dismissed subject to Chong Gay's admission of liability for liquidated damages for the period from 1 January 1975 to 11 August 1975. The supplemental agreements had been made to give effect to the parties' intention for a scheme of accelerated payment of the purchase price. In so far as the occupation of the properties was concerned, the parties were well aware that the issue of the TOL was a sine qua non. The use of the phrase “whether temporary or permanent” must mean, in the case of a “temporary” COF, a TOL. Such a construction was practical and gave commercial purpose to the sale agreements and supplemental agreements: at [55], [70] and [75].
(2) The omission of the phrase “whether temporary or permanent” in cl 2 of the supplemental agreement did not in any way detract from Chong Gay's liability to pay damages for the delay in the issue of the temporary COF, ie the TOL. Clause 18 of the sale agreements and cl 2 of the supplemental agreements had nothing to do with completion, which was dealt with in cl 12 of the sale agreements: at [74].
(3) Lee Kai's claim for specific performance in Suit 3678/1980 was dismissed. No date of completion had been stipulated under the sale agreements and supplemental agreements. Under cll 11 and 12 of the sale agreements, Chong Gay was only required to transfer the SSCTs to Lee Kai “as soon as” they were issued. Whilst there had been some delay in obtaining the SSCTs, which parties provided for in cl 4 (b), there was no unreasonable delay. Lee Kai was therefore not entitled to damages for breach of contract. Also, as Lee Kai had full enjoyment of the properties from the time it took possession upon the issue of the TOL, Lee Kai had not suffered any loss or damage to sustain its claim for specific performance: at [81] and [82].
(4) Lee Kai's argument that it was only liable to pay maintenance fees and service charges based on the “net rentable area” shown in the SSCTs was untenable because cl 25 of the sale agreements plainly stated that there would be no adjustment in the purchase price and/or maintenance fees in the event of a difference in the actual area on resurvey: at [84].
(5) Although Lee Kai was exempted from paying the maintenance fees and service charges for a grace period of six months from the date that Chong Gay gave notice that possession could be taken, once possession was taken by either Lee Kai or its tenants, it was required to pay for maintenance and services to be calculated on the basis of the “net rentable area so occupied”. The liability for the payment of maintenance fees and service charges was not dependent on the issue of the COF. As such, Chong Gay's entitlement to claim for maintenance fees and service charges was not after 13 December 1978, six months after the issue of the COF on 14 June 1978, but after the date possession could be taken: at [85] and [86].
(6) Whilst there had been a litany of complaints by Lee Kai on the shortcomings of the services and facilities in the Golden Mile Tower, taking all the circumstances together, Chong Gay had provided a reasonable standard of maintenance and services. Chong Gay's claim in Suit 2966/1982 for the arrears of maintenance fees and services charges was therefore allowed: at [87] and [88].
Orchard Twelve Investments Pte Ltd v Golden Bay Realty Pte Ltd [1985-1986] SLR (R) 723; [1986] SLR 272 (distd)
Phoenix Heights Estate (Pte) Ltd v Lee Kay Guan [1981-1982] SLR (R) 484; [1982-1983] SLR 20 (distd)
Local Government (Building) Regulations 1966 (GN NoS 159/1966)reg 34
Alan Wong (William Lai & Alan Wong) for the plaintiff in Suits 1304/1979 and 3678/1980 and for the defendant in Suit 2966/1982
Sia Moon Joon (Chor Pee & Co) for the defendant in Suits 1304/1979 and 3678/1980 and for the plaintiff in Suit 2966/1982.
Judgment reserved.
T S Sinnathuray J1 This judgment concerns three suits which have a long and chequered history.
The background facts
2 At all material times, Chong Gay Theatres Ltd (“Chong Gay”) was an unlisted public company. The main activity of the company was the running of cinemas and property development. Chong Gay had developed Kallang Theatre, and the subject matter involved in these three suits, the Golden Mile Tower at Beach Road.
3 In the Golden Mile Tower, there is a cinema with a seating capacity of 1,900. There are 398 office and shopping units in the building. It also has five storeys of car-parking facilities. There are no residential units.
4 The development of the Golden Mile Tower started in late 1971 or early 1972. The first temporary occupation licence (“TOL”) was issued on 12 August 1975 and the certificate of fitness (“COF”) for the building was issued on 14 June 1978.
5 On 5 December 1973, Chong Gay entered into five sale and purchase agreements (“the sale agreements”) with Collin Corporation Pte Ltd which subsequently changed its name to Lee Kai Corporation Pte Ltd (“Lee Kai”) for the sale of five floors of office space (“the properties”) in the Golden Mile Tower. Each floor consists of nine units of offices, making a total of 45 office units purchased by Lee Kai.
6 On the next day, 6 December 1973, the parties made five supplemental agreements (“the supplemental agreements”) varying certain terms of the sale agreements. Essentially, the supplemental agreements provided for the immediate payment of 75% of the purchase price of the properties, notwithstanding that under the sale agreements, this payment was not due till after the issue of “the certificate of fitness for occupation, whether temporary or permanent” for the properties. It was not in dispute that 75% of the purchase price had in fact been paid by Lee Kai to Chong Gay upon the signing of the supplemental agreements. It is the variation of the terms of the sale agreements by the supplemental agreements which has given rise to the dispute between the parties, and raised issues on the construction to be placed on certain clauses in these two sets of documents.
7 For convenience, I will first give a synopsis of the three suits which were consolidated by an order of court dated 20 March 1987 and ultimately dealt with together.
The synopsis
8 Suit No 1304 of 1979. In this action, the plaintiffs, Lee Kai, claimed against the defendants, Chong Gay, for the sum of $1,114,243.25 as liquidated damages for breach of contract in respect of the sale agreements and the supplemental agreements. Lee Kai alleged that Chong Gay had failed to obtain the relevant COFs within the time stipulated in cl 18 of the sale agreements and cl 2 of the supplemental agreements, namely, 31 December 1974.
9 Chong Gay, on the other hand, maintained that prior to the issue of the COFs, TOLs had been issued by the competent...
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